ObamaCare and the 'R' Word

As House members and senators drift back from the August recess with the shouts of angry constituents still ringing in their ears, they face a knock-down, drag-out fight over the fate of health care reform. And while conservatives may take pride in the outpouring of public opposition to a government-run health care program, they shouldn’t take comfort. The future of American health care and control of 17 percent of the economy may be determined by a procedural sleight of hand and an anonymous bureaucrat.

How could this be? Well, earlier this year Senate Democrats pushed through reconciliation instructions in the budget. Although Senate Budget Chair Kent Conrad objected, he was in fact the decisive vote to bring out of committee and to the floor for passage a federal budget with a set of instructions that now could control the health care debate.

A Senate aide describes reconciliation as “a partisan process rigged in favor of the majority.” It works as follows: The Democratic Senate leadership would at some point make a decision to use reconciliation rather than the normal lawmaking process to pass health care. The budget instructions would come to the floor and together with the proposed health care bill go to Senate Parliamentarian Alan Frumin. Appointed by both parties after then-Majority Leader Trent Lott fired his predecessor, he is supposedly a neutral arbitrator of the Senate rules, but simple survival dictates that his rulings will generally favor the majority.

Frumin’s job will be to determine if the health care proposal meets the reconciliation rules and specifically the Byrd Rule, which requires that only items germane to the budget be included in the reconciliation process. Would a public option meet the test? Would empowering a Medicare board to control costs? Those and hundreds of other queries will be Frumin’s calls.

Once Frumin agrees that the health care plan in conformity with Senate rules, the bill would go to the calendar and to the floor. Remarkably, that will be in all likelihood the first time the Republicans even see the bill, which is likely to be another thousand-page tome.

The debate on the future of America’s health care then would be limited to just twenty hours. No filibuster is allowed. At the end of the debate, a series of votes on proposed amendments would take place, culminating in a simple majority vote -- an unprecedented process on a hugely important piece of legislation. If Frumin finds any portion of the bill to violate the Byrd Rule, that ruling could still be overridden and the provision at issue could then be passed with 60 votes.

Numerous questions remain. For example, could the Republicans filibuster some other piece of legislation in order to shut down the Senate and preempt the reconciliation process? A Senate budget guru points out that given the Senate calendar, that would likely entail a spending bill, meaning the Republicans would be threatening to shut down (at least a part) of the government. With  memories of the disastrous face-off with Bill Clinton still vivid for many Republicans, that option doesn’t seem very attractive or likely.